Reproductive Rights Back Before the Court: Should Health Plans Offer Contraceptive Coverage?

Women's reproductive rights made a repeat appearance before the Supreme Court on March 23. This time the issue was birth control. Zubik v. Burwell was one of seven cases which asked the Court to decide whether religious non-profit employers can completely ignore the provision in the Affordable Care Act (aka Obamacare) that requires their health plans to offer contraceptive coverage as one preventive service.

Rules written by the Department of Health and Human Services for the ACA provided a way for religious organizations, such as universities, hospitals and social service groups, to opt-out of providing coverage by notifying their insurer or the government that their religious beliefs preclude contraceptive coverage. Then the government would provide it. The plaintiffs believe that since some birth control methods can act as an abortifacient, even writing a letter saying they won’t provide coverage would make them complicit, in violation of their religious beliefs.

This was challenged in every federal circuit and all but one circuit court found that notification was not a "substantial burden" on the exercise of religious beliefs. This split led the Court to hear the appeals of seven cases. The plaintiffs are all religious non-profit institutions, plus Roman Catholic clergy. This is the fourth cases challenging various aspects of Obamacare to reach the Supreme Court.

The lead case is named for the bishop of Pittsburgh, Rev. David A. Zubik. However, most of the publicity has focused on the Little Sisters of the Poor, whose dedication to serving the elderly poor make them the most sympathetic of the plaintiffs. Founded in France in 1839, the order works in 31 countries and all over the US. They were represented in this case by the Becket Fund for Religious Liberty, which also represented Hobby Lobby in a similar case before the Court.

While lawyers argued their case to eight Justices inside, the sidewalk in front of the Court was occupied by about 700 people, less than half of those there on March 2, when the case was Whole Woman's Health v. Hellerstedt. That case involved a Texas law which would have imposed stringent requirements for abortion clinics, which plaintiffs argued was an undue burden on women who wanted an abortion.

Once more two opposing groups formed circles facing a microphone and waving signs. However, this time both groups were less raucous. Indeed, the whole tone was lower key and friendlier than it was on March 2, when opposing camps engaged in a battle of signs and sound. As though they knew there would be no trouble, police were notable by their absence, except for the Capital Hill cops who kept demonstrators below the steps leading to the Court plaza.

On one side were about 500 people, including about 300 nuns and brothers in habits. They held violet signs saying "Women for Religious Freedom" and passed out large buttons, stickers, and even cookies whose cover said "Let Them Serve." This was a reference to the Little Sisters. Different uniforms were worn by 70 young women bused in from a Catholic girls school in Baltimore. The rest of the crowd was heavily female, with women and men wearing their Sunday best.

On the other side, were about 200 demonstrators, mostly young women with a scattering of men and older women. They were brought together by a coalition of feminist and reproductive rights groups. The rally was primarily organized by the National Women's Law Center. Others among the dozen or so co-sponsors were the ACLU, National Women’s Health Network, Americans United for Separation of Church & State, the National Council of Jewish Women and Catholics for Choice.

Speakers included several members of Congress. Reps. Jerry Nadler (D NY) and Diane DeGette (D CO) announced that 90 Members of the House and 33 Senators (all Democrats) had submitted an amicus brief supporting the ACA provision and the HHS rules. The brief said that 55 million women have received $1.4 billion worth of birth control devices since 2013. A 4-4 decision will leave the Circuit Court decisions intact, but set no precedent. If that appears to be the division of opinion, the Court may to set aside the case for re-argument when there is a ninth Justice.